In Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. Middleton Smith, Judge. Action at law by Mrs. M. A. Priester and her husband against the Southern Railway Company. Judgment for plaintiffs, and defendant brings error. Reversed. Frank G. Tompkins, of Columbia, S. C. (J. W. Manuel, of Hampton, S. C., on the brief), for plaintiff in error. George Warren, of Hampton, S. C., for defendants in error. Before WOODS and WADDILL, Circuit Judges, and GRONER, District Judge. WOODS, Circuit Judge. On July 3, 1921, defendant's north-bound passenger train struck the automobile in which Mrs. M. A. Priester and her husband were riding at the crossing near Valentine, S. C. Plaintiffs recovered judgment for injuries inflicted on Mrs. Priester. Error is assigned in the refusal of the District Court to direct a verdict in favor of the defendant on three grounds: (1) That no reasonable inference could be drawn from the testimony, except that no negligence had been proven against the defendant which could have any causal connection with the collision in question. (2) That no reasonable inference could be drawn from the testimony, except that the collision was caused by the sole negligence of the plaintiff's husband and agent, who was driving the car, for which the plaintiff was responsible, in that it appears conclusively that plaintiff and her husband were in full view of the train, and had ample time to have stopped their automobile before going upon the track, and that they saw or should have seen the approach of the train and have avoided the accident. (3) That if the railroad company had been guilty of any negligence, no reasonable inference could be drawn from the testimony, except that the plaintiff and her husband, who was her agent, were guilty of gross and willful contributory negligence in driving upon the track without looking and listening for the train, when they had ample opportunity to do so, in that the plaintiffs had a full view of the train in ample time to have stopped their automobile before coming upon the track, and in spite of this fact plaintiffs either willfully refused to look and listen for the train, or they handled their car in such a reckless and negligent manner as to place it on the track without sufficient time to cross over before the approach of the train. The evidence is to be considered in the light of the South Carolina statutes. Section 3222 of the South Carolina Code of 1912 requires a bell to be rung or a whistle sounded by the engineer or fireman of an approaching train at the distance of at least 500 yards from a public crossing. Section 3230 provides that the railroad shall be liable for injuries inflicted by collision at a crossing if the failure to give the statutory signals contributed to the injury "unless it is shown that, in addition to a mere want of ordinary care, the person injured, or the person having charge of his person or property, was, at the time of the collision, guilty of gross or willful negligence, or was acting in violation of the law; and that such gross or willful negligence or unlawful act contributed to the injury." Section 3288 requires: "A railroad corporation whose road is crossed by a highway or other way on a level therewith shall, at its own expense, so guard or protect its rails (289 F.) by plank, timber or otherwise as to secure a safe and easy passage across its road." The automobile was the property of Mrs. Priester. Priester drove it when he and his wife were together, but she often drove in his absence. Both frequently drove over the crossing and were familiar with it. At the time of the accident plaintiffs were approaching the railroad from the east on the public road, which crossed the track at a right angle. On the south side of the public road the view of the railroad was shut off by a field of tall corn to a point 33 feet from the track. On the other side of the public road, near the edge of the cornfield, the railroad company had made holes-or, in Priester's language, "a holey place"-in the public road by digging up earth to fill a hole dug for a sign post. The railroad is higher than the level of the public road, the rise being 32 feet in 15 feet. On both sides of the east rail thick boards had been placed. Against these boards earth had been thrown, so as to make the ascent and crossing easier. But the earth had been washed or worn away, so that the boards and rails were about 4 inches above the level. From the end of the cornfield, 33 feet from the track, the view of the railroad was clear both ways, and one looking down the track would see a train approaching from the south at least a half mile. The road being narrow, driving across the hole required unusual attention and care. According to the testimony of plaintiffs the approaching train must have been in full view when they reached the end of the cornfield. That neither of them looked south down the track at this point is evident from their own testimony and from the fact that they did not see the train. Priester; after driving to the end of the cornfield, slowed down to pass the holes. He then put on speed to make the rise of 32 feet and cross the track. Still neither of the plaintiffs saw the train, or looked, or heard its noise. When plaintiffs did finally see the train, almost at the instant that the automobile reached the east rail, it was within 50 or 60 feet of them. Then Priester attempted to apply the emergency brake, but missed it and applied the clutch. The momentum of the automobile not being sufficient to drive it over the board and first rail, it was "choked down," and stopped with the front projecting over the rail. But for this "choke down," the automobile probably would have been struck midway of the track and both the plaintiffs would have been killed. [1] The conductor, engineer, fireman, and two disinterested witnesses testified that the statutory signals were given. The plaintiffs testified they were not. This conflict made a question of fact, which must be solved in favor of the plaintiffs in deciding whether the jury should have been directed to find for the defendant. But there was no testimony to show willful or wanton failure to give the signals, as in Ritter v. Atlantic Coast Line Railway, 101 S. C. 8, 85 S. E. 51. [2-4] The presumption is in favor of due care by a traveler at a crossing because his safety is involved. There is no hard and fast rule of law that under all circumstances due care requires a traveler to look and listen before going on a railroad crossing. But it is well settled that when the railroad company has done nothing to allay his sense of danger, and there are no extraordinary conditions sufficient to distract the attention of a man of ordinary prudence and self-pos session from the duty of taking precaution, a traveler will be held guilty of contributory negligence, as a matter of law, when the evidence shows affirmatively beyond dispute that he walked or drove his vehicle on a crossing without taking any precaution whatever to ascertain if a train was approaching. Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542 and numerous cases cited under it in Rose's Notes; Dernberger v. B. & O. Ry. Co. (4th Cir.) 243 Fed. 21, 155 C. C. A. 551; U. S. Director General of Railroads v. Zanzinger (C. C. A. 4th Cir.) 269 Fed. 552 and authorities cited; Payne v. Blevins (C. C. A.) 280 Fed. 310; Bush v. B. & O. Ry. Co. (C. C. A. 4th Cir.) 288 Fed. 845 (filed March 30, 1923). [5] The federal case apparently most like that before us is Northern Pacific Ry. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014. There it was held there was no question for the jury, because the undisputed evidence showed that the traveler who was killed took no precaution before going on the crossing. The South Carolina court, in construing and giving effect to the state statutes above cited, has held to the same rule, namely, that although those in charge of the train be guilty of negligence or recklessness according to the circumstances, yet the traveler is guilty of gross negligence, and cannot recover if, without excuse, he takes no precaution, when any precaution would have warned him before going on the track and prevented the injury. Cable Piano Co. v. Southern Ry. Co., 94 S. C. 143, 77 S. E. 868; Drawdy v. Atlantic Coast Line Ry. Co., 78 S. C. 374, 379, 58 S. E. 980; Osteen v. Atlantic Coast Line Ry. Co. (S. C.) 112 S. E. 352, 360; Bain v. Northwestern R. Co. (S. C.) 113 S. E. 277; Chisolm v. Seaboard Air Line Ry. Co. (S. C.) 114 S. E. 500. Indeed section 3222 of the South Carolina Code of 1912 itself, by the strongest implication, provides that, even if the signals are not given, a traveler cannot recover if his own gross negligence has contributed to the injury. [6] The condition of the crossing contributed in no way to the accident. For a distance of 33 feet after passing the edge of the cornfield plaintiffs had an unobstructed view of the track for at least a half mile. From the hole where the automobile was slowed down for a distance of at least 15 feet plaintiffs still had the unobstructed halfmile view of the track. Neither of them took the obvious precaution of looking. It seems to us impossible to escape the conclusion that the failure to look was gross negligence. Surely it cannot be held. that a hole in the road which requires slow driving puts a traveler in such an extraordinary situation as to excuse him from looking down a straight track. [7, 8] Mrs. Priester was not chargeable with the negligence of her husband who was driving the car. Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652; Virginia Ry. & Power Co. v. Gorsuch, 120 Va. 655, 91 S. E. 632, Ann. Cas. 1918B, 838; Mayor of Baltimore v. State of Maryland, 166 Fed. 641, 646, 92 C. C. A. 335; 20 R. C. L. 158; 2 R. C. L. 1206, 1207; R. C. L. 1 Supp. 743. But she, equally (289 F.) with her husband, was guilty of gross contributory negligence, because she had the same opportunity to look out for the train and warn him of its approach. Colorado, etc., R. Co. v. Thomas, 33 Colo. 517, 81 Pac. 801, 3 Ann. Cas. 700, 70 L. R. A. 681; Miller v. Louisville, etc., R. Co., 128 Ind. 97, 27 N. E. 339, 25 Am. St. Rep. 416; Illinois Central R. Co. v. McLeod, 78 Miss. 334, 29 South. 76, 84 Am. St. Rep. 630, 52 L. R. A. 954, 84 Am. St. Rep. 630; Brickell v. New York Central R. Co., 120 N. Y. 290, 24 N. E. 449, 17 Am. St. Rep. 684; Brommer v. Pennsylvania R. Co., 179 Fed. 577, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924; Philadelphia & R. Ry. Co. v. Le Barr (C. C. A.) 265 Fed. 129; 33 Cyc. 1016, 1017; 20 R. C. L. 133. Reversed. CARR et al. v. MAXON. (Circuit Court of Appeals, Seventh Circuit. March 30, 1923. Rehearing Denied June 12, 1923.) No. 3158. Patents 328-1,203,482 and 1,204,245, for concrete road-tamping machines, held valid and infringed. The Carr patents, No. 1,203,482 and No. 1,204,245, both for concrete road tampers, the latter being for an improved machine, which carries also a strike for leveling the roadway ready for tamping held not anticipated, valid, and infringed. Appeal from the District Court of the United States for the Eastern District of Wisconsin. Suit in equity by Edward G. Carr and the Lakewood Engineering Company against Glenway Maxon, Jr. Decree for defendant, and complainants appeal. Reversed. F. E. Dennett, of Milwaukee, Wis., for appellants. Before BAKER, EVANS, and PAGE, Circuit Judges. PAGE, Circuit Judge. The District Court dismissed appellants' bill, charging infringement of claims 1, 2, 3, and 5 of Carr patent No. 1,203,482, herein called Carr 1, and claims 2, 3, 6, 7, and 13 of Carr patent No. 1,204,245, herein called Carr 2, both on concrete tampers. The defenses were noninfringement and prior use and invention. In building concrete roads concrete, made of cement, water, sand, and crushed stone, or gravel, is dumped upon a prepared roadbed between steel or wood forms, that hold the sides of the way to be concreted. The road is crowned along its longitudinal center and slopes each way to the top of the forms. In mixing the concrete, the quantity of water varies greatly, but the best results are obtained where little water is used. After dumping the concrete, it has to be spread, and then tamped. In 1914, Carr 1 was applied for. Roughly speaking, it consisted of an axle, that extended across the road, with wheels on either end, run For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ning upon the forms. A tamping bar, extending clear across the road, was carried a short distance in front of the wheels on two handles, one of which was attached to each end of the axle and extended a considerable distance forward. Through those handles, men moved the machine upon the work. The tamping bar was operated up and down by the mechanism of a gasoline engine, carried on the tamping bar frame. In 1915, Carr 2 was applied for. It consisted of a carriage having four wheels, moving upon the side forms under its own power. The frame carried two templets, or bars, extending clear across the roadway. The one, in this record called the "strike," had imparted to it by the machinery the horizontal motion which made the "strike-off" or leveling of the concrete ready for tamping. The other templet, also operated by the machinery, was the tamper and had a vertical move ment. A machine combining the elements of both these patents came into general use in nearly every state in the Union, and many hundreds of them have been sold. In 1920, appellee, a former employee of Carr, made the machine complained of and put it in use. Appellee's description of his machine shows clearly that there is no substantial difference between it and appellants' machine. The chief claim of difference is that, whereas, appellants' tamper has a quick up-and-down motion, the tamper in appellee's, machine drops until it comes in contact with the road, and, as the piston comes up in the cylinder, the pressure is built up and forces down the tamper until it reaches the limit of its strike, which is the top of the forms. By this alleged operation, it is urged that appellee escapes infringement of the vibratory element in appellants' claims. Appellee's illustration of its tamper operation shows two vertical cylinders connected by an air passage near the top. In each is a piston, working up and down from the bottom, one connected to the tamper, and the other by its rod to the crank shaft of the engine, geared, as claimed, to about 100 revolutions per minute. As the piston attached to the crank shaft moves up in the cylinder, the compressed air flows into the other cylinder, and, impacting with the piston head there, forces the tamper down onto the concrete. As the piston on the crank shaft moves downward, a vacuum is created in the cylinder above the tamper piston, and the tamper is raised. As the whole movement is made by the regular, uninterrupted motion of the engine, transmitted through its crank shaft and the piston attached thereto, the movement of the tamper must have the same regularity, and cannot go down slowly and come up quickly, as claimed. There is no difference between the operation of the tampers in the two machines, and we are of opinion that infringement is clearly shown. The record shows that a strike-off device, commonly called a "strike," and a tamper, operated by hand, were in use as early as 1912. The concrete was placed between the wood or steel side forms and leveled by men using shovels. The "strike," which was 18 inches longer than the width of the road, was made of one or more heavy planks, sometimes with handles on each end, with one edge of the planks cut so as |